Miss Melissa Rich (A Protected Party by her Mother and Litigation Friend Helen Rich) v Hull and East Yorkshire Hospitals Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 24 November 2015 |
| Neutral Citation | [2015] EWHC 3395 (QB) |
| Docket Number | Case No: HQ12X05057 |
| Court | Queen's Bench Division |
| Date | 24 November 2015 |
[2015] EWHC 3395
Mr Justice Jay
Case No: HQ12X05057
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Simeon Maskrey Q.C. (instructed by Stamp, Jackson & Procter LLP) for the Claimant
Philip Havers Q.C. (instructed by DAC Beachcroft LLP) for the Defendant
Hearing dates: 3 rd–6 th, 9 th–10 th November 2015
Introduction
This is the trial of Miss Melissa Rich's claim for damages for clinical negligence in the period leading up to her birth at the Defendant's hospital, the Hull Royal Infirmary, on 17 th June 1993. The Court has previously ordered that the issues of liability and causation should be addressed at this trial, with the issue of quantum, should the need arise, falling to be determined subsequently.
The key issue in this case is whether corticosteroid drugs should have been given to Melissa's mother, Helen, before her delivery by emergency Caesarean section ("CS") at 32 1 weeks' gestation. The Claimant alleges that this failure caused or materially contributed to her developing post-natal Respiratory Distress Syndrome ("RDS") as a result of which she required mechanical ventilation. Consequently, so the Claimant's case runs, she suffered cerebral ischaemia resulting in cerebral palsy due to Periventricular Leukomalacia ("PVL").
The resolution of this issue, which itself sub-divides into a number of issues under the overall rubrics of breach of duty, factual and medical causation, turns principally on my assessment of complex lay and expert evidence in the fields of obstetrics and neonatal medicine. However, before coming to the disputed matters, I need to set the scene by setting out some essential background to this case.
Essential Factual Background
Helen Rich had a complex obstetric history which it is necessary to summarise because it is relevant to the degree of risk of pre-term delivery when she was pregnant with Melissa.
Helen Rich was born on 17 th December 1965. Her first child, David, was born in May 1983 at full term following vaginal delivery. Her second child, Gareth, was delivered by CS at 37 weeks' gestation, on 20 th September 1984, following signs of antepartum haemorrhage which the experts agree is likely to have been caused by placental abruption. It is also agreed that the risk of placental abruption was enhanced in any subsequent pregnancy. Her third child, Adam, was delivered by CS at 40 weeks, on 31 st October 1985, after trial of labour failed to progress. The operation note records the lower segment of the uterus as being "very thin". This factor increased the risk of dehiscence (i.e. separation of the uterine scar) or scar rupture, although it did not eventuate. There was no evidence on this occasion of any placental abruption, haemorrhage or dehiscence.
Helen Rich's fourth, fifth and seventh pregnancies all ended in early miscarriages.
Helen Rich's fourth child, Lauren, was born delivered by CS at 30 or 31 weeks, on 21 st November 1987, following her admission to hospital with severe abdominal pain. The indication for emergency CS was pain consequent on possible abruption or uterine rupture. However, the operation note records that there was no evidence of dehiscence of the scar or rupture of the uterus, and no signs of placental abruption.
Helen Rich's fifth child, Hannah, was delivered by CS at 33 5 weeks, on 8 th May 1991, following complaints of severe, extensive pain. The pain was so severe that Mrs Rich would not allow the doctors to touch her lower abdomen. The operation note, as opposed to the antenatal notes, records that the reasons for the procedure were the three previous sections, the onset of labour, and suspected abruption of the placenta. The findings at operation included:
"… no adhesions in abdominal cavity. Lower segment exposed and excised, thick, not vascular … Liquor clear, no evidence of fresh abruption. Placenta complete, signs of old abruption on small surface …"
The experts agree that on this occasion the lower segment of the uterus was thick, not thin – in contrast with the operative findings when Adam was born. It is also agreed that the reference to "old abruption" must be to a relatively mild placental abruption during the course of this pregnancy.
Helen Rich's ninth, and last pregnancy, was with Melissa. According to the booking sheet, the expected date of delivery was 11 th August 1993 and she was to be under Consultant management. It was clear that the birth would need to be by CS, and on a date which cannot be deduced from the antenatal notes the mother was advised that the procedure might have to be undertaken at 37 or 35 weeks, owing to pain and the previous obstetric history. According to these notes, there was tenderness in the right iliac fossa as early as January 1993, and by March Helen Rich was complaining of abdominal discomfort on the right side of the scar similar to the symptoms she had experienced previously. On 13 th April she had to be admitted to hospital with complaints of abdominal pain "especially around scar". The pain settled and Helen Rich was discharged after two days.
On 18 th May 1993 Helen Rich was seen for the first time by Professor David Purdie, Honorary Consultant Obstetrician and Gynaecologist at the hospital. He was not the Consultant allocated to Mrs Rich at booking, but nothing turns on this. His clinical note reads:
"Well. Recurrent right abdominal pain under scar. To report stat[im] [i.e. immediately] if any acute onset pain with or without bleeding or if foetal movements decline sharply [or it might read "markedly"]."
Professor Purdie's letter to the GP reads:
"… she continues to have recurrent lower right-sided abdominal pain, similar to the pain which she has experienced with her abruption and prior to her last emergency CS. There is no objective evidence of scar dehiscence, nor of abruption this time, but we will need to get a further scan done before she is reviewed in a week to check that there is no retroplacental collection.
She is aware of the need for a further section this time and that this may again be premature. Please let us know at any time should problems arise. She knows to report to you at once should there be an acute onset of abdominal pain with, or without, bleeding or should foetal movements rapidly decline … Cons[ultant]/ S[enior] R[egistrar] only."
In his oral evidence, Professor Purdie explained that he believed that the origin of the pain was within the deep tissues underneath the skin incision rather than the uterine scar. His letter to the GP is consistent with that evidence.
On 19 th May 1993 Helen Rich was admitted to the labour ward as an emergency, complaining of pain under the CS scar. According to her witness statement, which was not cross-examined, " the pain must have been extreme for me to call an ambulance". On examination, she was found to be tense and tender over her lower abdomen, with the pain being most severe in the region of the left iliac fossa. By 16:30 the pain was noted as "beginning to settle". Examination of the abdominal area showed that the scars were "mildly tender". Helen Rich was then seen by a more senior doctor who confirmed the impression that there was no evidence of uterine scar rupture, and Tylex was prescribed. This is a paracetamol/codeine mixture which is recognised as being one step up in strength from paracetamol alone. By 23:00 the pain had settled and my interpretation of the midwifery notes is that she then slept well. Helen Rich was discharged home the following day.
On 25 th May 1993 Helen Rich was seen in the antenatal clinic by someone who has not been identified. His or her clinical notes read as follows]:
"… now pain under all scar … lying at home all day – never goes out. Only up to toilet and children."
The phrase "now pain under all scar" is difficult to interpret, but read as a whole this brief clinical note tends to suggest that Helen Rich's pain was debilitating although it probably was not as acute as it had been on 19 th May, given that she was not seeking re-admission to the ward. However, this is in the context of her having been prescribed fairly strong painkillers, which it is reasonable to infer that she had been taking, although I accept Mr Havers' submission that, given that there is no clinical record of the prescription, we do not know for how long. According to her witness statement, by then she had been in "constant" pain for over 6 weeks. However, I cannot regard this as an entirely reliable statement of the course, duration and intensity of the pain she suffered over two decades beforehand.
The clinical notes show that on 1 st and 3 rd June the midwifery team telephoned Helen Rich to arrange a further home visit (there had been one in April), but on both occasions there was no reply. This issue was not explored in evidence.
On 8 th June 1993 Helen Rich attended the antenatal clinic and saw Professor Purdie. Her witness statement suggests that this was because her pain had worsened, but the inference I draw from the clinical notes is that this visit had been pre-arranged. According to Professor Purdie's note:
"Still c/o right iliac fossa pain. Probably adhesions ± old scar."
According to the letter Professor Purdie wrote to Helen Rich's GP on the same day:
"She is well but still has recurrent RIF pain which has caused such trouble during the pregnancy. Again, there is no clinical problem on abdominal...
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